The Protection of Non-Traditional Trademarks

Irene Calboli is Professor of Law at Texas A&M University School of Law, and Transatlantic Technology Law Forum Fellow at Stanford Law School. She has been a visiting professor and scholar in academic institutions world-wide. Most recently, she was Visiting Professor, Lee Kong Chian Fellow, and the Founding Deputy Director of the Applied Research Centre for Intellectual Assets and the Law in Asia, a Centre that she headed from 2015 until 2017, at Singapore Management University School of Law. An elected member of American Law Institute and associate member of the Singapore Academy of Law, she currently serves, inter alia, as member of the Council of the International Law Association (Singapore Branch), Chair of the Art Law Section of the Association of American Law Schools, and member of the Legislation and Regulation Committee of the International Trademark Association.Martin Senftleben is Professor of Intellectual Property, Centre for Law and Internet, Vrije Universiteit Amsterdam, and Of Counsel, Bird & Bird, with admission to the bar in The Hague and Düsseldorf. Besides intellectual property courses at his own university, he regularly teaches at the Centre for International Intellectual Property Studies (CEIPI), Strasbourg, the EBS University of Business and Law, Wiesbaden, the HANKEN School of Economics, Helsinki, the Munich Intellectual Property Law Center (MIPLC) and the Universities of Vienna and Catania. Professor Senftleben is a member of the Executive Committee of the Association littéraire et artistique internationale (ALAI) and the International Association for the Advancement of Teaching and Research in Intellectual Property Law (ATRIP).

The increased flexibility of the application for registration together with developments in modern marketing has extended the scope of trade marks, both practically and philosophically. The Protection of Non-Traditional Trade Marks [...] serves to help us navigate the debate on these developments from a legal, economic and cultural perspective, it equips us with both empirical evidence and theoretical frameworks as the tools to do so [...] This book is a useful source for policymakers, trade mark examiners, trade mark attorneys, judges and researchers with an interest in trade marks. In particular, anyone wanting to keep abreast the current climate and future of the trade mark landscape in relation to non-traditional marks and branding.

• Part I: Assessing the Legal Framework and Unresolved Challenges 1: Denis Croze: Making a Large Universe Visually Perceptible: The Development of Non-Traditional Marks in WIPO Treaties 2: Mitchell Adams and Amanda Scordamaglia: Non-Traditional Marks: An Empirical Study 3: Dev Gangjee: Paying the Price for Admission: Non-Traditional Marks Across Registration and Enforcement 4: Annette Kur: Yellow Dictionaries, Red Banking Services, Some Candies and a Sitting Bunny: Protection of Colour and Shape Marks from a German and European Perspective 5: Justin Hughes: Non-Traditional Marks and the Dilemma of Aesthetic Functionality 6: Deven Desai: Should Trademark Laws Protect Non-Traditional Trademarks?A Look at How Marketing Practices Try to Capture Essences 7: Ng-Loy Wee Loon: Absolute Bans on the Registration of Product Shape Marks - A Breach of International Law? 8: Michael Handler: What Should Constitute Infringement of a Non-Traditional Mark? The Role of <"Trademark Use> " 9: Hoachen Sun: Protecting Non-Traditional Trademarks in China: New Opportunities and Challenges Part II: Assessing the Impact on Competition and Culture 10: Gustavo Ghidini: The Protection of (Three-Dimensional) Shape Trademarks and Its Implications for the Protection of Competition 11: J. Glynn Lunney: Non-Traditional Trademarks: The Error Costs of Making an Exception the Rule 12: Lavinia Brancusi: Assessing the Impact of Non-Traditional Marks: A European Union Competition Law Analysis 13: Carolina Castaldi: The Economics and Management of Non-Traditional Marks: Why, How Much, What and Who 14: Arul Scaria and Kavya Susan Mammen: Non-Traditional Marks on Pharmaceutical Products: Non-Traditional Barriers to Access to Medicine? 15: Irene Calboli: Hands Off "My" Colors, Patterns, and Shapes! How Non-Traditional Trademarks Promote Standardization and May Negatively Impact Creativity and Innovation 16: Martin Senftleben: A Clash of Culture and Commerce: Non-Traditional Marks and the Impediment of Cyclic Cultural Innovation 17: Lisa Ramsey: Non-Traditional Marks and Inherently Valuable Expression 18: Katya Assaf: Non-Traditional Trademark Protection as (Non-Traditional) Means of Cultural Control